Opinion
64151C2003
Decided November 10, 2004.
Emma Ketteringham, The Bronx Defenders, Bronx, New York, for Defendant.
Anthony Bailey, Office of the District Attorney, Bronx County, Bronx, New York, for the People.
The defendant, Steven Melendez, is charged with criminal possession of a weapon (P.L. § 265.01), possession of ammunition (A.C. § 10-131 [i] [3]), and two counts of criminal possession of a controlled substance in the seventh degree (P.L. § 220.03). He has moved for an order dismissing the accusatory instrument on the ground that he has been denied his right to a speedy trial. The main issue before the Court, which appears to be one of first impression, is whether the People should be charged with the period of time when the defendant was not present in court while under "house arrest" awaiting trial in federal court. The defendant argues that he was in "custody" during this period, and since the People requested the adjournments in order to "produce" him for his Court appearances, they should be charged with the time. The People respond, in substance, that the defendant's "house arrest" status does not possess any of the earmarks of "custody" or "detention" for the purposes of CPL § 30.30, and that the People should not be charged with the time period in question. The motion to dismiss the accusatory instrument on speedy trial grounds is denied in its entirety.
The time period within which the People must answer ready for trial is prescribed by CPL § 30.30(1), which provides that such period is to run from the commencement of the criminal action. This commencement refers to the filing of the first accusatory instrument. see CPL § 1.20(17); People v. Lomax, 50 NY2d 351 (1980). Here the action commenced for speedy trial purposes on November 28, 2003, when the defendant was arraigned. As the charges faced by the defendant are misdemeanors which carry the potential of imprisonment in excess of three months, the People have 90 chargeable days within which to communicate their readiness for trial in satisfaction of their speedy trial obligation under CPL § 30.30(1)(b).
This case originated in the Criminal Court of the City of New York, Bronx County. It was transferred by order of the Administrative Judge for the Supreme Court, Bronx County to Supreme Court, Criminal Term, pursuant to 22 NYCRR § 142.2(b), after a finding that such a transfer would "promote the administration of justice in Bronx County for selected components of the criminal caseload of its courts."
THE PERIODS PRIOR TO DEFENDANT'S ARREST ON FEDERAL CHARGES November 28, 2003 through December 4, 2003
Following the defendant's arraignment on November 28, 2003, the matter was adjourned to December 4, 2003. This six-day period is chargeable to the People because they were not ready for trial, and they failed to identify a statutory exception that would render this period excludable.
December 4, 2003 through January 15, 2004
The People were not ready on December 4, 2003, and the case was adjourned to January 15, 2004. On December 16, 2003, however, the People filed a statement of readiness, and a firearms analysis report. The filing of the statement of readiness and firearms analysis report tolled the speedy trial clock with respect to the charges of criminal possession of a weapon (P.L. § 265.01) and possession of ammunition (A.C. § 10-131 [i] [3]). People v. Kendzia, 64 NY2d 331, 337 (1985). The People are, therefore, charged only with the 12-day period from December 4, 2003 to December 16, 2003 for those charges. The People were not ready on the charge of criminal possession of a controlled substance in the seventh degree (P.L. § 220.03) because they lacked a necessary laboratory report. As such, this entire 42 day period is chargeable to the People concerning that charge.
The charges of criminal possession of a weapon in the fourth degree (P.L. § 265.01) and possession of ammunition (A.C. § 10-131 [i] [3]) are unaffected by the failure to file the chemical test report. See People v. Dion, 93 NY2d 893 (1999). "Speedy trial [analysis] must, as a matter of course, often involve distinct considerations with respect to individual counts of a single accusatory instrument." People v. Minor, 144 Misc 2d 846, 848 (App Term, 2nd Dept 1989); see also, People v. Gonzalez, 168 Misc 2d 136 (App Term, 1st Dept 1996).
January 15, 2004 through March 4, 2004
According to court records, on January 15, 2004, a motion schedule was set. The case was adjourned to March 4, 2004 for the Court's decision. The period is not chargeable to the People pursuant to CPL § 30.30(4)(a); See People v. Worley, 66 NY2d 523, 527 (1985).
On February 3, 2004, the People served and filed a superseding accusatory instrument, a supporting deposition, a laboratory report, and another copy of the firearms analysis report. At the same time they served and filed a statement of readiness for all counts.
March 4, 2004 through April 20, 2004
The People again announced their readiness for trial in Court on March 4, 2004. Defense motions had not yet been filed, and another motion schedule was set. The case was adjourned to April 20, 2004 for the Court's decision. The period is not chargeable to the People. CPL § 30.30(4)(a); See also People v. Cajigas, 224 AD2d 370, 372 (1st Dept. 1996); People v. Armstrong, 163 Misc 2d 588, 590 (App. Term 1st Dept 1994).
April 20, 2004 through May 21, 2004
The Court granted a Mapp/Dunaway/Payton hearing on April 20, 2004, and the case was adjourned to May 21, 2004. The period is excludable because the People are entitled to a reasonable time to prepare for the hearing and trial after the Court granted the defendant's motion for hearings. People ex rel. Mayfield v. McCrane, 234 AD2d 88, 89 (1st Dept 1996); People v. Green, 90 AD2d 705 (1st Dept 1982).
May 21, 2004 through June 17, 2004
The People were not ready on May 21, 2004, and requested an adjournment to May 26, 2004. The case was subsequently adjourned to June 17, 2004. Because this is a post-readiness situation, the People are only charged with the actual adjournment that they requested, in this case, five days. Cajigas, 224 AD2d at 371.
THE PERIOD OF TIME DURING WHICH THE DEFENDANT WAS UNDER "HOUSE ARREST" AND NOT BEFORE THE COURT
June 17, 2004 through July 28, 2004
On June 17, 2004, the defendant was not present in Court. Defense counsel informed the Court that the defendant had been charged with crimes in a case pending in the United States District Court for the Southern District of New York, and was in federal custody as a result of those charges. Based upon that representation, the Court did not issue a warrant. Instead, the Court directed the People to attempt to produce the defendant pursuant to CPL § 580.30. The case was adjourned to July 1, 2004 for that purpose. On July 1, 2004, the People told the Court that they had not produced the defendant, and requested until July 15, 2004 to do so. The case was adjourned to July 28, 2004. On that day, the defendant appeared in court. He was not accompanied by police officers or a United States Marshal; rather, he walked in on his own. His federal case was still pending.
The People made no record about any efforts they had made to produce the defendant at that time. However, in an affirmation filed in response to this motion to dismiss, the People state that they did in fact attempt to locate and produce the defendant between July 1, 2004 and July 28, 2004. During that time, the People discovered that the defendant was under "house arrest." In fact, in the affirmation in support of the motion to dismiss, the defense acknowledges that "[o]n or about July 23, 2004, the prosecution informed defense counsel by telephone that Mr. Melendez had been released from custody and was under house arrest." (Defense Affirmation in Support of the Motion to Dismiss at page 4). An Assistant District Attorney spoke with an individual working in "Pre-Trial Services for the Southern District of New York" and that individual told the prosecutor that "the defendant was not in jail, but under house arrest since June 17, 2004." (People's Affirmation in Opposition at page 5). Furthermore, according to that individual, the defendant was not barred from traveling to this Court on this case on his own as a condition of that house arrest. To the contrary, "the defendant was able to travel to court after providing 48 hours advance notice." (People's Affirmation in Opposition at page 5). The People, therefore, assert that due to the fact that the defendant was under house arrest, and could have appeared in Court, they should not be charged with this 41-day period for failing to produce him, as such a period falls under the definition of an "exceptional circumstance," pursuant to CPL § 30.30(4)(g). The defendant seeks to have the People charged with the period from June 17, 2004 to July 15, 2004, as he argues that these were adjournments at the request of the People to produce the defendant from federal detention.
At the outset, the defense has not responded to the People's factual contention that the defendant was placed under "house arrest" on June 17, 2004, and could have appeared before the Court on his own at any time merely by advising an appropriate person in the federal system that he was going to do so. It is well settled that where the People allege facts in opposition to a speedy trial motion, and those facts are not refuted by the defendant, those facts should be accepted as true. See People v. DeJesus, 272 AD2d 61 (1st Dept. 2000), appeal denied, 95 NY2d 962 (2000); see also, People v. Luperon, 85 NY2d 71, 78 (1995); People v. Elijah, 272 AD2d 273 (1st Dept. 2000); People v. Chambers, 226 AD2d 284, 285 (1st Dept. 1996). In this case, those unrefuted facts provide ample reason to exclude this time period from speedy trial calculations.
Criminal Procedure Law § 30.30(4)(e) provides that "the period of delay resulting from the detention of a defendant in another jurisdiction" is excluded from speedy trial calculations "provided the district attorney is aware of such detention and has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial." The question therefore becomes whether a defendant's "house arrest" status under federal law equates with "detention" under the Criminal Procedure Law. The answer is that "house arrest" is not "detention."
Section 3142 of Title 18 of the United States Code provides several different methods of ensuring a defendant's appearance while awaiting trial in federal court. A judge may order a defendant to be "detained" if there are "no condition[s] or combination of conditions [that] will reasonably assure the appearance of the [defendant] as required and the safety of any other person and the community." 18 U.S.C. § 3142(e). The term "detention" as used in this statute refers to the commitment of the defendant to the custody of the Attorney General for "confinement in a correctional facility." Medina v. Clark, 791 F.Supp. 194, 196(W.D.Tenn.), aff'd, 978 F.2d 1259 (6th Cir. 1992). A judge may also release a defendant on his own recognizance, or release a defendant subject to the posting of bail. 18 U.S.C. § 3142(b). And, a judge may order a defendant to be "released on a condition or a combination of conditions." 18 U.S.C. 3142(a)(2). The conditions a judge can set for such a release include that the "defendant remain in the custody of a designated person who agrees to assume supervision; . . . abide by specified restrictions on personal associations, place of abode, or travel; . . . comply with a specified curfew; . . . [and] satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community." 18 U.S.C. § 3142(c). This section includes what is commonly called "house arrest" status.
As the entire statute makes clear, "house arrest" is not the same as "detention." Rather, a defendant under "house arrest" is released from "detention," and the "house arrest" status is merely a condition of that release. United States v. Traitz, 807 F.2d 322 (3d Cir. 1986); See also United States v. Givens, 1990 WL 156664 (E.D. Pa.). Further, house arrest restrictions placed upon a defendant as a condition of pretrial release do not constitute "official detention" within the meaning of the statute entitling a defendant to sentencing credit for time spent in official detention. See 18 U.S.C. § 3585[b]; United States v. Wickman, 955 F.2d 592 (8th Cir. 1992); United States v. Becak, 954 F.2d 386 (6th Cir. 1992), cert. denied, 504 U.S. 945 (1992); United States v. Zackular, 945 F.2d 423 (1st Cir. 1991); Modlin v. Hambrick, 793 F.Supp. 136 (E.D. Ky. 1992); United States v. Browning, 761 F.Supp. 681 (C.D. Calif. 1991); Cf. U.S. v. Zackular, 945 F.2d 423, 425 (1st Cir. 1991). ("While a defendant's movements may be severely curtailed by the conditions of his home confinement, it cannot seriously be doubted that confinement to the comfort of one's home is not the functional equivalent of incarceration in either a practical or a psychological sense.")
The term "custody" was used in 18 U.S.C. § 3568 (repealed), the predecessor to 18 U.S.C. § 3585, in calculating sentencing credit. That term was also interpreted as requiring incarceration as a precondition to credit. Zackular, 945 F.2d at 425-25.
"Detention" quite obviously, is understood to mean the same thing under CPL § 30.30(4)(e). It refers to the situation in which a defendant is imprisoned by the government, and his liberty is completely curtailed. See, e.g., People v. Parker, 186 AD2d 593, 594 (2nd Dept. 1992) (time period "during which the defendant was detained in Connecticut" while awaiting trial on burglary charges was excludable); People v. Hinton, 181 AD2d 696, 697 (2nd Dept. 1992) (People required to exercise due diligence to obtain the appearance of a defendant "detained" in a federal prison in order to claim exclusion under CPL § 30.30(4)(e)).
Where a defendant is not "detained" in a federal prison, there is no legal mechanism available to compel his appearance in state court. CPL § 580.30 is the statutory mechanism to be used to obtain the appearance of a defendant "confined to federal prison." See People v. Scott, 242 AD2d 478 (1st Dept. 1997). The statute does not provide a mechanism for obtaining the appearance of an individual who is on "conditional release" status, such as being under "house arrest." But, no statutory mechanism should be necessary in this type of situation. There is no person or agency who could be directed to bring such a defendant before the court. A defendant on conditional release status is, for all intents and purposes, at liberty. The defendant is expected to come to court on scheduled dates, just as any other released defendant would be. It is up to a defendant under "house arrest" to make whatever arrangements are necessary to appear before the court.
In this case, it is obvious that the defendant was able to make those arrangements, since he appeared in court on his own volition on July 28, 2004 while his federal case was still pending. The defendant argues, however, that between June 17, 2004 and July 15, 2004, the People should have made arrangements with the federal authorities to contact the defendant, inform him of the date of his court appearance in this case, and direct him to appear in this Court. The unrefuted facts show that the defendant was only in "custody" for a part of the day on June 17, 2004, and then was released with "house arrest" conditions on that same day. Since the defendant cannot be said to have been detained pursuant to CPL § 30.30(4)(e) after June 17, 2004, the People were under no duty to produce him or make any such arrangements. To the contrary, the defendant was responsible for coming to court on his own as soon as he was released from federal custody. And, he was certainly able to at least contact his own attorney to find out the date for his next scheduled court appearance.
Even if they were, they did act to determine the defendant's whereabouts in a reasonable period of time after learning of the defendant's arrest on federal charges, and even communicated the fact that the defendant was no longer in federal custody to defendant's attorney during this 28 day period.
Accordingly the time period from June 17, 2004 to July 28, 2004 is not charged to the People. However, the Court does not make its ruling pursuant to CPL § 30.30(4)(g), as the People suggest. The circumstances present in this case hardly qualify as "exceptional." At bottom, this is nothing more than a garden variety case in which the period of delay results from the defendant's failure to appear on his own volition after being released on his own recognizance, and was not in custody on another matter during that period. Although the People did request the adjournments to produce the defendant, those requests were not the sole cause of the delay in this case. This is a post readiness situation in which the delay, as it turns out was the fault of the defendant. Thus, the period is excluded pursuant to CPL § 30.30(c)(i). SUBSEQUENT ADJOURNMENT PERIODS
The Court can also rely on CPL § 30.30(4)(c)(ii) to exclude this time. The fact that the People did not ask for a warrant to issue on June 17, 2004 does not preclude finding the time excludable under this section of the statute. The People relied upon the representation of the defense, which was still accurate as of some time that day, in not requesting that a warrant issue. See People v. Parker, 186 AD2d at 594.
July 28, 2004 through September 8, 2004
The defendant appeared in court on July 28, 2004, but the People were not ready. The case was adjourned to September 8, 2004. On August 4, 2004, however, the People filed a statement of readiness. The filing of the statement of readiness tolled the speedy trial clock. People v. Kendzia, 64 NY2d 331, 337 (1985). The People are, therefore, only charged with the seven-day period from July 28, 2004 to August 4, 2004.
September 8, 2004 to the Present
The defendant filed his motion to dismiss on August 11, 2004. On September 8, 2004, the case was adjourned for the decision of the Court. The period is not chargeable to the People pursuant to CPL § 30.30(4)(a).
In sum, the Court finds that 30 chargeable days have elapsed since the commencement of this action as to the charges of criminal possession of a weapon (P.L. § 265.01) and possession of ammunition (A.C. § 10-131 [i] [3]), and 60 chargeable days have elapsed as to the two counts of criminal possession of a controlled substance in the seventh degree (P.L. § 220.03). Accordingly, the defendant has not been denied his right to a speedy trial pursuant to CPL § 30.30, and his motion to dismiss is denied.
This opinion shall constitute the decision and order of the Court.